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"^jiSor !- "O™'^ OF REPRESENTATIVES { ''^^""^ 



MEMORIAL 



OF THE 



YAKIMA TRIBE OF INDIANS 



PROTESTING AGAINST THE PASSAGE 

OF SENATE BILL GG93. RELATING TO 

THE DISTRIBUTION OF AVATER FOR 

IRRIGATION PURPOSES 



P 



PRESENTED BY MR. STEPHENS OF TEXAS 
January 25, 1913. — Ordered to be printed 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1913 



E99 



i Congress of the United States. 

In the House of Eepkesentatives, 
! January 25, 1913. 

Ordered, That a memorial of the Yakima Tribe of Indians against 
the passage of S. (3693, relating to the distribution of water for 
irrigation purposes, be printed as a House document. 
Attest : 

South Triimble, Clerk. 



D. OF D. 
PEG 1 1918 



^ 



MEMORIAL or THE YAKIMA TRIBE OF INDIANS. 



Yakima Indian Reservation, Wash., 

June 8, 1912. 
Hon. John H. Stephens, 

Chairman Committee on Indian Affairs, 

House of Representatives, Washington, D. C. 

Our Friend: In the name of our tribe of Yakima Indians we 
protest against Senate bill G693. It is grossly unjust, depriving us 
of water rights which are ours by all that is equity between man 
and man. 

Under date April 6, 1911, we petition Indian commissioner to 
build Wapato project under terms we think just. We want you to 
see this petition. Senator Jones has copy of this petition, and we 
[are] sorry he did not make his bill right. 

We have two canals on reservation, one built 1896-97, this other 
built 1903. This last one is now called " Wapato project." Both 
are built with our tribal money. 

In 1906 Secretary Hitchcock divide Avater in Yakima River and 
give us 147 cubic feet and give Sunny side 650 feet, leaving several 
miles of our new ditch dry and not enough to water good the 20,000 
acres watered by our ditches. 

We ask if this is right? 

Our riparian rights are older than those of the white man. This 
reservation we were permitted to hold when the Government took 
all our other land. Water is life and belongs to the earth. Our land 
is poor without water. The Government has set still and let our 
water be stolen, and now the Reclamation Service cinch us tight if 
Jones bill 6693 become law. The Reclamation Service talk two 
ways; it said water under Tieton project only cost $60 or $63 acre, 
but it cost $93 acre. We understand this is true with other projects. 
Poor people bought land for little homes under Tieton Canal, and 
now have to sell cheap or loose all because of high cost water. This 
will be same with Indian if Jones bill is made law. White man is 
better farmer than Indian. Indian only understands horses and 
cattle. Reclamation make high cost water, high cost drainage; 
Indian can not pay, and land be sold from him. This is what white 
man want. 

This Jones bill 6693 is blind talk. It says give Indian free storage 
water for 32,000 acres. This is not true. As we tell you we have 
30,000 acres now watered, and this 30,000 are included in the 32,000 
a.cres. This leaves only 2,000 acres free storage Avater. This is not 
right. It is stealing from the poor Indian. We do not want this 
done. The water rights to this 20,000 belong to the land because used 
long time and it can not be taken away. We own half of Yakima 
River and all water in reservation, but we are not protected in any 
rights. 

3 



4 MEMORIAL OF THE YAKIMA TRIBE OF INDIANS. 

On Ahtan.m Riv^ divide ^^IS^^^^^^ 
have most land, the Secretary of the Interior n^s ^^ ^^^^^^^ 

water to white man. ^'^^^^^^^ -'tf ^^n This was done and we 
he gives nearly ^11 ^^^^^er to white m^^^^^^^^ God wants 

could not help ourselves, ^^e want oni> ^^^^^^ \r ^ j.^rd to 
the white man and the red man to h^^e m peace ^^ y^ ^^ 

do right and obey the white ^^^^^.f^^^^^^^fj^ouseioint resolution 250" 
Our friend in Congress ^^^ i^^^,^?*^ ..^^.-^i.ti This is good, but 
for Attorney Genei-al to ^f e oui wat n ^g^^ ^^^^^ 

Secretary Interior hold ^^f. ^^^^^.[f ^ aU water and have us flat, 
bill 6693 law, so Eeclamation will o^^n au w^^^^ resolution 250. 

AVe want you to stop J^^^s b 1 and make la^ .^ ^^^^ ^^ 

Then Attorney General wil settle all] ustiy. ^ 



are done 



Oui'foiend, help us. We want to hear from you. 

Your friends, . , , 

( ^io-TiPd^ We-yal-lup Wa-ya-ci-ka (his X mark) , 

(Signed) ^VE yaA3i,/,fl Tnhal Courts, 

Washikoton, D. C, Jiimiaiy 2',, 191S. 
Hon. John H. Stephens, j #,„•„<, 

(7Mi™«n tf.mm^*«e on '^^^e^f Representatives. 

S:h We re,.e. X- -PPSl:^^ ^/'SrSn^l "sfa^tilS^^ 
lion directing the Attoiney STeneiai oi . ^ -^ f Indians, 

l^lSStl" ,to'r ^ 0^4 t?,* nS^kver ana AMan.™ 
^'^t i:&nti:^'Zf:^^t y«.u. co.„,.ittee to favor 
Attorney General J^ /"^d^to ten w si ^ ^^.^^^.^^^^^^^^ ^^ ^^^ 

r^Teafr;.i:di tnhe^r;.u om^^^^^^ 

water right to 20 acres of irrigable land, less tiian one 
is a prior right to the r^^^^^"^8\i™ wat^;- ^.^^^ -^ uestion was 

The title of the Yakima Ind-n ,to th ^e^l^^^^Xfiedly the Sen- 
secured by treaty June 9, 18.)o (1^ t5tai.,^^i;_ 

ate March 8, 1859, and P7^1^"^«?^^P^l,^^3,\,,',nent home of these 
The reservation was intended to be the peimanent 

Indians, as plainly stated in the treaty. appropriation 

The bill (S. 6693) and «^^/^^^e^f^^^^.^f^^?^^!^21 1913 'S^^^ contem- 
act, introduced by Senator J^^es on Januao ^]^^''^^, ^^^^^^ ,3^. 

^£^^:^J:^^^^^^^'^ 'ThisVoposed grant 



MEMORIAL OF THE YAKIMA TRIBE OF INDIANS. 5 

of water includes 147 second-feet of running- river water heretofore 
reserved for the lakima lands, while it is proposed to reserve the re- 
maining 253 second-feet out of the stored waters, as authorized by the 
iegislation now pending. 

The Yakima Indians have not slept upon their rights in this mat- 
ter On February 19, 1903, the agent in charge of the Yakimas filed 
notice of appropriation of water by the Indians for 1,000 second- 
feet which is believed to be less than one-half of the low-water flow 
01 the Yakima Kiver. 

The Yakimas claim they are now using water for 30,000 acres 
equivalent to 375 cubic feet per second. It seems evident that if the 
■!^Tu^^}}''^A^''^ ^^^"^ retarded by the Eeclamation Service and lim- 
ited by the Government in the recent past, they would no doubt al 
■ J,;?^ *^rT- ^^ ™^k"^g beneficial use of twice that amount of water 
Ihe lakimas have been reduced almost to a starvation basis if we 
are correctly informed, while at the same time a proposition is sub- 
mitted to them by the Government which is intended to limit the 
water supply, and to which they will not consent. 

It seems reasonable that by reason of prior appropriation and 
riparian right the Yakimas are entitled to about 1.000 cubic feet of 
water per second, being 600 cubic feet more than the pendino- lems- 
lation proposes to grant to them free of storage charo-es "it has 
been estimated that 1 cubic foot of water per second is worth $8 000 

S Qm nnn^ ^'f ""^-J^^ ^"^^^ ^'^* P^^* ^^^^^^^^ ^^'«"lfl '-^m^unt to 
5i>4,SOO,000, which Avill represent the loss in water rio-ht to the Yaki- 
mas m event the pending legislation is adopted. Furthermore it i« 
proposed to limit the Yakimas to 147 second-feet per second of run- 
ning river water, the balance of 400 second-feet proposed bv the 
legislation to be from stored water, which right is secondarv to the 
right to the running water of the streams. 

,,T^e„ Yakima Indians are opposing the pending legislation limiting 
their free water right to 400 cubic feet per second of time, and plead- 
ing that their right to the waters within and bordering upon their 
reservation shall not be determined by arbitrary rule of the Secretarv- 
^^ ^-(le^ Interior, and that their claim to an increased amount of water 
shall be determined in an orderly manner by litigation in the courts 

• u. \-.' ^^ ^ submit that the Indians are entitled to have their 
right adjudicated by due process of law, which has been stated to be— 

An orderly proceeding adapted to the nature of the cnse. in which tlie citizen 
^Cyc?rvoL^T"i""lOS-^^? "'' ^'^'''"^ '""^ ^" '^''^''"''' ^"^'•^'''^- '"'"'^ 1^'"^^^"^ '"^ '^'^^^^■ 

The constitutional limitations upon the Federal Government extend 
to ail proceedings, whether legislative, judicial, administrative, or 
executive (ibid., p. 1083) ; and this right extends to all natural per- 
sons (ibid., pp. 1085-1085), and Indians are included in this consti- 
tutional guaranty. (Choate v. Trapp, 224 U. S., 685.) 

The highest courts of the land support the contentions of the 
lakimas in this matter. The United States Supreme Court, in 1908, 
affimied the decision of the United States circuit court of appeals in 
a case affecting water rights within Fort Belknap Indian Reserva- 
tion, Mont., and said : 

fhnt " wbi"''V?' 7^J''^ ^^ T"''''' '^^t *^« ^^"^•^ l^elow did not err in holding 
that when the Indians made the treaty granting rights to the United Statel 
they reserved the right to nse the waters of Milk IJiver. .• t St to an extent 



6 MEMORIAL OF THE YAKIMA TRIBE OF INDIANS. 

reasonably necessary to irrigate their lauds. T'he right so reserved continues 
to exist against the United States and its grantees, as well as against the 
State and its grantees. (Winter v. U. S., 207 U. S., 564.) 

The United States circuit court of appeals, in 1908, confirmed an 
opinion of the lower court which we commend to your thoughtful 
consideration : 

Manifestly the Indians can not be expected to acquire water rights to any 
considerable extent through prior appropriation, because they are not far 
enough advanced in the art of agriculture to reduce the water to a continuous 
use, and the water of the public streams that they shall finally need depends 
largely upon their ])rogress in this art. The Government, however, being their 
guardian has a most important trust to perform in this relation — that is, so to 
conserve the waters of such streams as traverse or border the reserve as to 
supply the Indians fully in their probable or, I may say, even possible future 
needs when they have ultimately secured their allotments in severalty. (Con- 
rad Investment Co., 161 Fed., 829.) 

It is the policy of the Government to allot each Indian sufficient 
land upon which a home may be established. We find that the 
Heclamation Service determines 40 acres as a minimum '' farm unit " 
for settlers under the Sunnyside and Tieton units, which embrace 
lands similar to those belonging to the Yakima Indians which it is 
proposed to irrrigate (Tenth Annual Report Reclamation Service), 
and water sufficient for 160 acres will be granted private landowners. 
The Yakima Indians are limited to 20 acres, with water right from 
their own reservation, notwithstanding a vested right by prior 
appropriation and riparian right. 

There is a growing sentiment that Indians should have the benefit 
of protection by the courts. The Mohonk conference of friends of 
the Indian, held at Mohonk Lake, N. Y., October 25, 1912, adopted 
as a part of its platform a clause which reads : 

In providing water for irrigation of the lands of the Yakima and other 
Indian tribes the Government is in duty bound to protect their vested and 
treaty rights to as full an extent as would be done in cases between citizens. 
We recommend that, whenever practicable, proceedings should be instituted by 
the Government to procure a judicial determination of the Indian rights. 

We trust that your committee will make a thorough investigation 
of the rights of the Yakima Indians pertaining to the irrigation of 
their lands and conclude that these rights should receive considera- 
tion by the court, unless it should be conceded that each allottee shall 
be entitled to not less than Avater sufficient for 40 acres of his allot- 
ment. 

Very respec-tfully submitted. 

S. M. Brosius, 
Agent Indian Rights Association. 



Departivient of Justice, 
Washington, D. C, Apiil 18, 1912. 
Hon. J. H. Stephens, 

Chairman Committee on Indian Affairs, 

House of Representatives . 

Sir: T have your letter of the 9th instant in which you request a 

report from tliis department upon House joint resolution 250, for 

the protection of the Avater rights of the Pima and Yakima Indians. 

In reply I Avill say, in the first place, that the resolution appears 

to be unnecessary. " The Attorney General. I believe, is already 



MEMORIAL OF THE YAKIMA TRIBE OF INDIANS. 7 

vested with ample authority to institute and maintain suits such as 
those to which the resolution refers; and this department is at all 
times ready, and indeed eager, to protect the interests of the Indians, 
so far as the limited funds placed at its disposal will permit it to 
do so. 

The needs of the Pima and Yakima Indians Avith respect to the 
adjudication of their water rights have for some time past been 
under consideration here and by the Interior Department, and this 
department stands ready to act promptly, so soon as it shall have 
received final advices and recommenclations from the Department 
of the Interior. 

In regard to that portion of the resolution which provides for a 
right of appeal to the Supreme Court of the United States, I would 
suggest, first, that the provision is somewhat indefinite; and, sec- 
ondl}^, that under the existing statutes appeals may be taken in 
suits brought by the United States to the circuit court of appeals 
and thence to the Supreme Court when the matter in controversy 
before the latter tribunal exceeds $1,000, exclusive of costs. 

Eespectfully, for the Attorney General. 

Ernest Knabel, 
Assistant Attorney General. 



YAKiarA water rights THE CONTENTION OF THE INDIANS. 

It is claimed for the Yakimas of Washington that they were the 
first settlers, their right to the reservation lands being confirmed by 
the treaty of 1855. negotiated by Gov. Stevens of the then Territory 
of Washington. The treaty contemplated the civilization of the 
Indians by providing (sec. 2) that they should settle on the lands 
within a year; they were granted (sec. 3) exclusive right to take 
fish in all streams running through or bordering on the reservation; 
provision was made (sec. 4) for breaking up and fencing farms, 
building houses for them, establishing agricultural and industrial 
(sec. 5) schools, and employing workmen to teach the various trades; 
a flouring mill was to be established, and land plowed and fenced for 
farming purposes, and (sec. 6) the Indians located in permanent 
homes. 

Irrigation is a necessary requisite to farming in the Yakima coun- 
try, and the Yakimas have established by use of their own funds an 
irrigation system to supply water from the streams to Avhich they 
have a prior right, covering 80,000 acres. It is claimed for them 
that they are entitled to the normal flow of the waters within the 
reservation for irrigation, and no doubt their claim for water from 
the streams bordering upon their lands is well founded. 

It is believed that the statutes of the State are not binding upon 
the Indians nor the Government affecting the Indian's water rights. 
The United States Supreme Court affirmed a decision rendered by 
the United States circuit court of appeals in 1908 relating to water 
for irrigation of Fort Belknap Indian Keservation lands in Mantana, 
in which it was held : 

In conclusion, we are of opinion tliat the court below did not err in holding 
that " when the Indians made the treaty granting rights to the United States 
they reserved the right to use the wjiters of Milk liiver iit least to an extent 



O MEMORIAL OF THE YAKIMA TRIBE OF INDIANS. 

reasonably necessary to irrigate their lauds. The right so reserved continues 
to exist against the United States and its grantees, as well as against the State 
and its grantees." (Winter v. U. S., 207 U. S., 564.) 

In confirming the decree of the lower court the United States Su- 
])reme Court relied exclusively upon the terms of the agreement be- 
tween the Indians and the Government by which the reservation was 
set apart for the permanent home of the tribe, by means of which 
they were to become self-supporting " * * * as a pastoral and 
agricultural people and educate their children in the paths of civili- 
zation." 

As showing that the Indians can not be expected to immediately 
make the most beneficial use of the water to which they are entitled 
for irrigation and that they should not suffer by reason of this, a case 
in point is found in the decision of the court in the action of the 
Tmited States against the Conrad Investment Co., confirmed by the 
United States court of appeals in 1908 (161 Fed., 829). The court 
said : 

Manifestly the Indians can not be expected to acquire water rights to any con- 
siderable extent through prior appropriation, because they are not far enough 
advanced in the art of agriculture to reduce the water 'to a continuous use, 
and the water of the public streams that they shall finally need depends largely 
upon their progress in this art. The Government, however, being their guar- 
dian, has a most important trust to perform in this relation — that is, so to con- 
serve the waters of such streams as traverse or border the reserve as to supply 
the Indians fully in their probable, or, I may say, even possible future needs, 
when they have ultimately secured their allotments in severalty. 

As indicative of what a judicial determination of the Yakima 
water rights would be, we submit that the terms of the Yakima treaty 
are more favorable to their tribe than the treaties to which the de- 
cisions quoted refer. From this we may confidently conclude that 
the prior right through treaty of the Yakimas to the running water 
of the streams within and bordering on their reservations is well 
established. 

Notwithstanding the apparent equities and the favorable decisions 
of the courts supporting the claims of the Yakimas, the United States 
Reclamation Service refers to the Yakima claims as being vague 
claims. 

These Indians complain most bitterly of the injustice of denying 
to them the use of sufficient water for irrigation of their lands. 
Many of the Indian farms have become barren and the allottees des- 
titute. At the time of mj^ recent visit to the reservation influential 
tribesmen importuned that they might be allowed water for irriga- 
tion of lands which the^^ have for years cultivated and by which they 
have supported themselves and families. 

It has been shown that in the settlement of contesting claimants 
for water the Yakimas have not been treated fairly. To illustrate: 
The adjustment of the contentions under the Sunnyside unit, 
or project, the reports of the Reclamation Service show that the 
settlers were diverting 625 second-feet and the Yakimas within 
the reservation 269 second-feet of water, although the Indians claim 
a far greater diversion ; the canals of the settlers under the Sunny- 
side embraced 60,000 acres, while the reservation canals covered 
80,000 acres (the area could have been enlarged to include 170,000 
acres of irritable land). The settlers had filed on 1,050 second-feet 
and the Yakimas on 1.000 second-feet. From this we deduce that the 



MEMORIAL OF THE YAKIMA TEIBE OP INDIANS. 9 

Indians should have been awarded one-third more water than the set- 
tlers under the Sunnyside canals on the basis of actual capacity of 
works and use of water independently of the claim of prior right 
under treaty. 

The Yakimas w^ere further harrassed by reason of a temporary 
injunction issued out of the State courts of Washington prohibiting 
them from using over 147 second-feet of water, estimated to be 
sufficient for irrigation of 11,760 acres. 

Before a trial of the rights involved in the injunction proceeding 
the Secretary of the Interior, on March 27, 1906, approved a schedule 
of the Eeclamation Service limiting the Indians to 147 second-feet, 
as claimed by the settlers outside the reservation who were prosecut- 
ing the injunction. The injunction was then abandoned. The net 
results of this proceeding were, that while the Indians should have 
been awarded one-third more water by comparison of canals installed 
and beneficial use aside from treaty rights, they were given less than 
one-fourth as much as was granted the settlers. 

It should be borne in mind in this connection that the injunction 
proceedings in the State courts were illegal, since they were without 
jurisdiction in the case. 

The injustice of the award of water in the foregoing instance is 
tersely stated in a protest by the Indians against legislation now 
pending which proposes to charge the Yakimas for water in excess 
of a quantity sufficient for 32,000 acres.' 

In 1906 Secretary Hitchcock divide water in Yakima River and give us 147 
cubic feet and give Sunnyside Canal 650 feet, leaving several miles of our 
new (liteli dry, .ind not enough to water good the 30,000 jieres watered by our 
ditches. We ask if this is right? 

Our riparian rights are older than those of the Avhite man. This reservation 
we were permitted to hold when the Government took all our other laud. 
Water is life and belongs to the earth. Our land is poor without water. The 
Government has set still and let our water be stolen, and now the Reclamation 
Service cinch us tight if Jones bill 6693 become law. 

On Ahtanum River divide of our reservation, where white man have most 
land, the Secretary of Interior gives three-fourths of water to white man. 
Now, when red man have most land to water, he gives nearly all water to 
white man. This was done, and we could not help ourselves. We want only 
what is right. God wants the white man and the red man to live in peace. 
We try hard to do right and obey the white man's laws. We want you to help 
us. We want the white mau to be honest and treat us right. Our words are 
done. 

By the act of 1904 it was proposed that allottees should relinquish 
all land, excepting 20 acres, for which a free water right would be 
given. This the Yakimas refused to do, believing that they were 
entitled to a very much larger acreage by reason of prior appropria- 
tion, through construction of canals, and by riparian rights, which, 
as shown, are upheld by the courts in other cases. 

The legislation now' pending in Congress (S. 6693), which has 
the approval of the Secretary of the Interior, provides for the con- 
struction of a reservoir at an expenditure of $1,800,000. This meas- 
ure limits the amount of free-storage water for the Yakima Indians 
to 32,000 acres, which is about the acreage the Yakimas claim they 
are now making beneficial use of. One hundred and twenty thou- 
sand acres of Yakima Eeservation lands are included in (his project, 
so that if the Indians secured water for the remaining 88,000 acres 
allotted they must pay for it. The Yakimas claim right to run- 



10 MEMORIAL OF THE YAKIMA TRIBE OF INDIANS. 

idng river water. The pending legislation provides that the excess 
over 147 second-feet shall be from storage, which is secondary in 
right of use to the river water. The Commissioner of Indian Affairs 
favored the contention of the Yakimas, but was overruled. 

In 1911 the Government advertised for bids for constructing nec- 
essary works for irrigating the 120,000 acres of Yakima lands. A 
bid of $250,000 was rejected on the theory that it was too high and 
the work could be done by the Interior Department for a less sum. 
As we have stated, the proposition now is to appropriate $1,800,000 
for this purpose, which shall be reimbursable from the 120,000 acres, 
excepting the free storage for 32,000 acres. The legislation has been 
temporarily defeated and the Secretary of the Interior directed to 
report to Congress the estimated cost of such storage works. 

Last year the Reclamation Service imposed a charge of $1 per 
acre upon the Yakimas for water for irrigation, when in fact the 
Indians had been using the river water for years. It may be that 
the unbiased investigator would be inclined to consider this a species 
of coercion in order to secure acquiescence of the desire of the Gov- 
ernment that they should give up their right to 60 acres out of 80 
acres of their allotment, accepting a 20-acre water right in full of 
their allotment of irrigated land. Another inducement held out to 
the Yakimas to give up title to all land alloted in excess of 20 acres 
was that if they would do so they would be adjudged competent In- 
dians and be granted authority to lease their own and their minor 
children's allotments. It may be questioned that whether or not 
the Indian has not shown the greatest competency by refusing to 
give up three-fourths of his allotment of 80 acres. 

The Government is urging acceptance by the Indians of its civili- 
zation. If these wards of Government accept in good faith, then 
surely we can not expect them to merely exist. A higher standard of 
living to which they are invited is correlative with greatly increased 
expenses. The shibboleth of the allotment plan of the Government 
may be said to be that the Government reserves in trust sufficient 
land for the untutored allottee to meet his needs after he has adopted 
our civilization at the termination of the 25-year trust rather than at 
its beginning. 

S. M. Brosius, 
Agent, Indian Rights Association. 

Washington, D. C, Octoher 23, 1912. 

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